Opinion
CV-22-01672-PHX-JJT (ESW)
05-17-2023
Adan Gonzalez, Plaintiff, v. Lance Hetmer, et al., Defendants.
HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE
This is a civil rights action brought by Arizona state prisoner Adan Gonzalez (“Plaintiff”) pursuant to 42 U.S.C. § 1983. On December 5, 2022, the Court screened the three-count Complaint (Doc. 1). The Complaint alleges that various prison officials and a private medical provider violated Plaintiff's constitutional rights by (i) transferring him to a maximum custody facility (SMU I) without due process; (ii) denying adequate medical care for Plaintiff's eye condition; and (iii) retaliating against Plaintiff for refusing to cooperate with an investigation. The Court required Defendants Hetmer, Crabtree, Stickley, Kimble, and Ibarra to answer in their individual capacities the Fourteenth Amendment due process claim in Count One pertaining to Plaintiff's transfer to SMU I and continued placement in maximum custody without a hearing. (Doc. 7 at 13). The Court dismissed all other claims and Defendants. (Id. at 17).
On January 20, 2023, Plaintiff filed a “Motion for Leave to File a First Amended Complaint (‘FAC') Pursuant to Fed.R.Civ.P. 15(a)” (Doc. 14). The Court denied the Motion without prejudice for failure to comply with Local Rule of Civil Procedure (“LRCiv”) 15.1. (Doc. 22).
On March 10, 2023, Plaintiff filed a renewed Motion for Leave (Doc. 28) and lodged a four-count First Amended Complaint that substantially complies with LRCiv 15.1. By separate Order, the undersigned screened Plaintiff's First Amended Complaint and required Counts One, Two, and Four to proceed against a number of Defendants.
However, the First Amended Complaint fails to correct the deficiencies noted in the Court's prior Screening Order with respect to Count Three. Count Three of the original Complaint presents a retaliation claim regarding Plaintiff's transfer to a maximum custody facility after Plaintiff declined to assist with an investigation into prison staff misconduct. (Doc. 1 at 17-20). In its Screening Order, the Court found that Plaintiff's allegations fail to support a conclusion that any named Defendant took any adverse action against Plaintiff because of any protected conduct by Plaintiff. (Doc. 7 at 16). The Court noted that although the Complaint alleges that Defendant Kimble ordered Plaintiff to be transferred to ASPC-Eyman SMU I immediately after Plaintiff declined to assist with the investigation, the Complaint does not allege that Defendant Kimble or any other Defendant was aware that Plaintiff had refused a request to assist with the investigation and ordered the transfer because of that refusal. (Id.). The Court therefore dismissed Count Three.
As Defendants correctly observe in their Response (Doc. 39 at 4), Plaintiff has not made any material amendments to Count Three of the First Amended Complaint. It is therefore recommended that the Court dismiss Count Three of the First Amended Complaint.
In addition, like the original Complaint, the First Amended Complaint does not connect any of the allegations to Defendants Daniels, Johnson, and General Counsel John/Jane Doe. (See Doc. 7 at 10). Plaintiff therefore fails to state a claim against Defendants Daniels, Johnson, and General Counsel John/Jane Doe, and it is recommended that the Court dismiss those Defendants. It is also recommended that the Court dismiss Defendants Pacheco, Monson, Parks, Sutton, and Evans for the same reasons that the Court dismissed those Defendants from the original Complaint. (Id. at 11-13, 17).
Accordingly, IT IS RECOMMENDED that the Court dismiss Defendants Daniels, Johnson, General Counsel John/Jane Doe, Pacheco, Monson, Parks, Sutton, and Evans.
IT IS FURTHER ORDERED that the Court dismiss Count Three of the First Amended Complaint.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.